Constitutional
law — Charter of Rights — Right to life, liberty and security of person — Certificate
issued against foreign national stating that he is inadmissible to Canada on
national security grounds for allegedly engaging in terrorism — Named person
challenging constitutionality of security certificate scheme on grounds that it
prevents full disclosure and personal participation in hearings — Whether
scheme under which security certificate issued deprives named person of right
to life, liberty and security of person in accordance with principles of
fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Immigration
and Refugee Protection Act, S.C. 2001, c. 27, ss. 77(2), 83(1)(c), (d), (e), (h),
(i), 85.4(2), 85.5(b).

Immigration
— Inadmissibility and removal — National security — Certificate issued against
foreign national stating that he is inadmissible to Canada on national security
grounds for allegedly engaging in terrorism — Judge reviewing reasonableness of
certificate finding sufficient evidence to demonstrate that certificate was
reasonable and upholding certificate — Whether designated judge erred in
concluding that certificate was reasonable.

H is
alleged to have come to Canada for the purpose of engaging in terrorism. In
2002, a security certificate was issued against H under the scheme then
contained in the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(“IRPA”). The certificate declared H inadmissible to Canada on national
security grounds. After a successful constitutional challenge of the then
existing IRPA security certificate scheme and subsequent amendments to
the IRPA, a second security certificate was issued against H and
referred to the Federal Court for a determination as to its reasonableness. During
the proceedings, the special advocates appointed to protect the interests of H
in the closed hearings sought to obtain disclosure of the identity of human
sources who provided information regarding H to the Canadian Security
Intelligence Service (“CSIS”) as well as permission to interview and to
cross-examine them. The designated judge rejected their request, finding that
the common law police informer privilege should be extended to cover CSIS human
sources. The designated judge also rejected their request to compel the
ministers to obtain updated information from foreign intelligence agencies on
several alleged terrorists with whom H was claimed to have associated. In
addition, H’s request to exclude from the evidence summaries of intercepted
conversations on the ground that the original recordings and notes of these
conversations were destroyed pursuant to CSIS policy OPS-217 was refused by the
designated judge. The designated judge found the security certificate scheme
under the amended IRPA to be constitutional, and concluded that the
certificate declaring H inadmissible to Canada was reasonable. On appeal, the
Federal Court of Appeal upheld the constitutionality of the scheme but found
that the identity of CSIS human sources is not protected by privilege. It also
excluded from the evidence the summaries of intercepted conversations to which
H had not been privy, and remitted the matter to the designated judge for
redetermination on the basis of what remained of the record after the exclusion
of the summaries.

Held (Abella and
Cromwell JJ. dissenting in part on the appeal):
The appeal should be allowed in part. The cross-appeal should be dismissed. The
IRPA scheme is constitutional. CSIS human sources are not protected by
a class privilege. The designated judge’s conclusion that the security
certificate was reasonable is reinstated.

The
impugned provisions of the IRPA scheme are constitutional. They do not
violate the named person’s right to know and meet the case against him, or the
right to have a decision made on the facts and the law. The alleged defects of
the IRPA scheme must be assessed in light of the scheme’s overall design
and of the two central principles that guide the scheme: (1) the designated
judge is intended to play a gatekeeper role, is vested with broad discretion
and must ensure not only that the record supports the reasonableness of the
ministers’ finding of inadmissibility but also that the overall process is
fair; and (2) participation of the special advocates in closed hearings is
intended to be a substantial substitute for personal participation by the named
person in those hearings. However, the scheme remains an imperfect substitute
for full disclosure in an open court, and the designated judge has an ongoing
responsibility to assess the overall fairness of the process and to grant
remedies under s. 24(1) of the Charter where appropriate.

The IRPA
scheme provides sufficient disclosure to the named person to be
constitutionally compliant, since the designated judge has a statutory duty to
ensure that the named person is reasonably informed of the case against him or
her throughout the proceedings. However, the IRPA scheme’s requirement
that the named person be “reasonably informed” of the case should be read as a
recognition that the named person must receive an incompressible minimum amount
of disclosure. A named person is “reasonably informed” if he or she has
personally received sufficient disclosure to be able to give meaningful
instructions to his public counsel and meaningful guidance and information to
his or her special advocates which will allow them to challenge the information
and evidence presented in the closed hearings. The level of disclosure
required for a named person to be reasonably informed is case-specific,
depending on the allegations and evidence against him or her. Ultimately, the
designated judge is the arbiter of whether this standard has been met.

Only
information and evidence that raises a serious risk of injury to national
security or danger to the safety of a person can be withheld from the named
person. The designated judge must be vigilant and skeptical with respect to
the claims of national security confidentiality and must ensure that only
information or evidence which would injure national security or endanger the
safety of a person is withheld from the named person. Systematic overclaiming would
infringe the named person’s right to a fair process or undermine the integrity
of the judicial system, requiring a remedy under s. 24(1) of the Charter.

The IRPA
scheme’s approach to disclosure, which fails to provide for a balancing of
countervailing interests, does not render the scheme unconstitutional. Section
7 of the Charterdoes not require a balancing approach to disclosure;
rather, it requires a fair process. Parliament’s choice to adopt a categorical
prohibition against disclosure of sensitive information, as opposed to a
balancing approach, does not as such constitute a breach of the right to a fair
process.

The
communications restrictions imposed on special advocates do not render the
scheme unconstitutional. They are not absolute and can be lifted with judicial
authorization, subject to conditions deemed appropriate by the designated judge.
The judicial authorization process gives the designated judge a sufficiently
broad discretion to allow all communications that are necessary for the special
advocates to perform their duties. This broad discretion averts unfairness as
the designated judge can ensure that the special advocates function as closely
as possible to ordinary counsel in a public hearing. The judge should take a
liberal approach in authorizing communications and only refuse authorization
where the Minister has demonstrated, on a balance of probabilities, a real risk
of injurious disclosure. In addition, the named person and his public counsel
can send an unlimited amount of one-way communications to the special advocates
at any time throughout the proceedings.

The
admission of hearsay evidence or the denial of the opportunity for special
advocates to cross-examine sources do not render the IRPA scheme
unconstitutional. The IRPA scheme achieves the purpose of excluding
unreliable evidence by alternative means to the rule against hearsay evidence
and the right to cross-examine witnesses — it provides the designated judge
with broad discretion to exclude evidence that is not “reliable and
appropriate”, which allows the judge to exclude not only evidence that he or she
finds, after a searching review, to be unreliable, but also evidence whose
probative value is outweighed by its prejudicial effect against the named
person.

Privilege for CSIS Human Sources

CSIS
human sources are not protected by a class privilege. First, police informer
privilege does not attach to CSIS human sources. The differences between
traditional policing and modern intelligence gathering preclude automatically
applying traditional police informer privilege to CSIS human sources. While
evidence gathered by the police is traditionally used in criminal trials that
provide the accused with significant evidentiary safeguards, the intelligence
gathered by CSIS may be used to establish criminal conduct in proceedings that
have relaxed rules of evidence and allow for the admission of hearsay evidence.
Second, this Court should not create a new privilege for CSIS human sources. If
Parliament deems it desirable that CSIS human sources’ identities and related
information be privileged, it can enact appropriate protections. The IRPA
scheme already affords broad protection to human sources by precluding the
public disclosure of information that would injure national security or
endanger a person.

Although
the identity of CSIS human sources is not privileged, special advocates do not
have an unlimited ability to interview and cross-examine human sources. The
discretion of the designated judge to allow the special advocates to interview
and cross-examine human sources in a closed hearing should be exercised as a
last resort. A generalized practice of calling CSIS human sources before a
court, even if only in closed hearings, may have a chilling effect on potential
sources and hinder CSIS’s ability to recruit new sources. In this case, there
is no need to authorize the exceptional measure of interviewing and
cross-examining human sources.

Summaries

The
appropriate remedy for the destruction of materials pursuant to CSIS policy
OPS-217 must be assessed on a case-by-case basis and must be tailored to
address the prejudicial effect on the named person’s case. The summaries of
materials destroyed pursuant to policy OPS-217 should only be excluded under s.
24(1) of the Charter if their admission would result in an unfair trial
or would otherwise undermine the integrity of the justice system. In this
case, the designated judge did not err in refusing to exclude the summaries of
intercepted conversations that were tendered as evidence by the ministers. Although
the destruction of the original CSIS operational materials caused the ministers
to fail to meet their disclosure obligations towards H and therefore to breach
s. 7 of the Charter, the exclusion of the summaries is not necessary to
remedy the prejudice to H’s ability to know and meet the case against him, or
to safeguard the integrity of the justice system. The disclosure of the
summaries in an abridged version to H and in an unredacted form to his special
advocates was sufficient to prevent significant prejudice to H’s ability to
know and meet the case against him.

Duties of Candour and Utmost Good Faith and Fairness of Process

The
duties of candour and utmost good faith apply when a party relies upon evidence
in ex parte proceedings. They require an ongoing effort to update,
throughout the proceedings, the information and evidence regarding the named
person. What constitutes reasonable efforts will turn on the facts of each
case; however, the ministers have no general obligation to provide disclosure
of evidence or information that is beyond their control. In this case,
reasonable efforts were made by the ministers and they did not breach those
duties. The proceedings against H were fair and a stay of proceedings should
not be granted.

Reasonableness of Certificate

The
designated judge committed no reviewable errors in finding that the ministers’
decision to declare H inadmissible to Canada was reasonable. The designated
judge’s weighing of the factual evidence on the record is entitled to appellate
deference and should only be interfered with if he committed a palpable and
overriding error. There is no palpable and overriding error in his weighing of
the evidence or in his assessment of H’s credibility, both of which in his view
provided reasonable grounds to establish H’s inadmissibility.

Per
Abella and Cromwell JJ. (dissenting in part on the appeal): Individuals who
come forward with information about a potential terrorist threat, often risk
their lives in doing so if their identity is disclosed. Offering only the
possibility of anonymity if a court subsequently agrees to protect an informer’s
identity, requires informers to choose between risk of personal harm if their
identity is not protected, or risk of harm to the public if the information is
not disclosed.

CSIS
informants who provide national security information based on a promise of
confidentiality are entitled to the assurance that their confidentiality will
be protected. This can only be guaranteed by a class privilege, as is done in
criminal law cases. A case-by-case approach results in an informant not
knowing whether the promise will be kept until a judge engages in a
retrospective assessment. This is hardly conducive to encouraging informants
to risk their lives by coming forward to offer highly sensitive information in
terrorism cases.

Informer
privilege has been judicially recognized for more than two centuries and has a
dual purpose: protection of a channel of information and the safety of those
supplying it. It has been applied in settings other than criminal
prosecutions, including commissions of inquiry. The privilege for informers in
the context of state officials investigating matters of national security is a
well-established one. Before CSIS was created as an independent agency, the
intelligence function it now carries out was performed by the RCMP Security
Service, and informer privilege applied to RCMP Security Service informants. While
the functions of CSIS and the RCMP are distinct, the rationale for the informer
privilege applies equally to the work of both. The transfer of functions from
the RCMP Security Service to CSIS should have no bearing on whether the
privilege continues to exist.

The
CSIS informer privilege is not abrogated by statute. In order to abrogate a
common law privilege, Parliament must clearly express an intention to do so. IRPA
makes no reference to informer privilege and does not evince a clear intention
to deprive CSIS informants of its benefit.

Given
the intensity of the interests at stake in the security certificate context, it
would be appropriate to recognize a limited exception specifically crafted for
the security certificate process which would address only disclosure to the
special advocate, not to the subject of the proceedings. Identity should be
disclosed only if the reviewing judge is satisfied that other measures,
including withdrawing the substance of the informant’s evidence from
consideration in support of the certificate, are not sufficient to ensure a
just outcome. Even when disclosure of identity is ordered, there should be no
cross-examination of the source by the special advocate. Requiring a human
source to testify will have a profound chilling effect on the willingness of
other sources to come forward, and will undoubtedly damage the relationship
between CSIS and the source compelled to testify. CSIS operatives must be able
to provide confident assurances to their sources that their identities will not
be revealed, not vague assurances hedged with qualifications. Moreover, the
human sources themselves, who are not subject to the necessary security
clearance, may learn sensitive material in the closed proceedings which CSIS
will then be unable to control.

We would
therefore allow the ministers’ appeal on the informant privilege issue and
restore the designated judge’s disposition of this issue.

Canada. Commission of Inquiry Concerning Certain Activities of the
Royal Canadian Mounted Police. First Report. Security and Information.
Ottawa: The Commission, 1979.

Canada. Commission of Inquiry Concerning Certain Activities of the
Royal Canadian Mounted Police. Second Report. Freedom and Security under
the Law, vols. 1 and 2. Ottawa: The Commission, 1981.

Canada. Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar. Report of the Events Relating to Maher
Arar: Analysis and Recommendations. Ottawa: Public Works and Government
Services, 2006.

Forcese, Craig, and Lorne Waldman. “Seeking Justice in an Unfair
Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use
of ‘Special Advocates’ in National Security Proceedings”, August 2007 (online:
http://aix1.uottawa.ca/~cforcese/other/sastudy.pdf).

Roach, Kent. “The eroding distinction between intelligence and
evidence in terrorism investigations”, in Nicola McGarrity, Andrew Lynch and George
Williams, eds., Counter-Terrorism and Beyond: The Culture of Law and
Justice after 9/11. New York: Routledge, 2010, 48.

Sedley, Stephen. “Terrorism and security: back to the future?”, in
David Cole, Federico Fabbrini and Arianna Vedaschi, eds., Secrecy, National
Security and the Vindication of Constitutional Law. Cheltenham, U.K.:
Edward Elgar, 2013, 13.

Breese Davies and Erin Dann, for the intervener the Criminal
Lawyers’ Association (Ontario).

Paul J. J.
Cavalluzzo
and Paul D.
Copeland, as
Special Advocates.

The judgment of
McLachlin C.J. and LeBel, Rothstein, Moldaver, Karakatsanis and Wagner JJ. was
delivered by

[1]The Chief
Justice ―The
Minister of Citizenship and Immigration and the Minister of Public Safety and
Emergency Preparedness (collectively “the ministers”) seek to have Mohamed
Harkat, a non-citizen, declared inadmissible to Canada. Mr. Harkat is alleged
to have come to Canada for the purpose of engaging in terrorism. He has been
detained, or living under strict conditions, for over a decade. He potentially
faces deportation to a country where he may be at risk of torture or death,
although the constitutionality of his deportation in such circumstances is not
before us in the present appeal.

[2]The reasonableness of the ministers’ decision to
declare Mr. Harkat inadmissible to Canada is subject to judicial review, under
Division 9 of Part 1 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “IRPA scheme”). This scheme prevents Mr. Harkat from
seeing some of the evidence and information tendered against him, because its public
disclosure would harm national security.

[3]The issue in this appeal is whether the IRPA
scheme complies with the Constitution, in particular the guarantee in the Canadian
Charter of Rights and Freedomsagainst unjustifiable intrusions on life,
liberty, and security of the person. More specifically, this appeal asks
whether the IRPA scheme gives Mr. Harkat a fair opportunity to defend
himself against the allegations made by the ministers, despite the fact that
national security considerations prevent him from seeing the entire record and
from personally participating in all of the hearings. It requires us to
determine how far the principle of full disclosure in an open court can be
qualified in order to address the threat posed by non-citizens who may be
involved in terrorism.

[4]I conclude that that the IRPA scheme is
constitutional. Crafting a regime that achieves a fundamentally fair process
while protecting confidential national security information is a difficult
task. The scheme must apply to a broad range of cases, implicating a variety of
national security concerns. Parliament’s response to this challenge has been to
confer on judges the discretion and flexibility to fashion a fair process, in
the particular case before them. If this is impossible, judges must not
hesitate to find a breach of the right to a fair process and to grant whatever
remedies are appropriate, including a stay of proceedings.

[5]In the present case, the process was fair and
the Federal Court judge committed no reviewable errors in finding that the
ministers’ decision to declare Mr. Harkat inadmissible to Canada was
reasonable.

I.History of the Legislation and of the
Proceedings

A.The Legislation

[6]The purpose of the IRPA scheme “is to
permit the removal of non-citizens living in Canada — permanent residents and
foreign nationals — on various grounds, including connection with terrorist
activities”: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC
9, [2007] 1 S.C.R. 350 (“Charkaoui I”), at para. 4. The ministers must
decide whether the evidence against a non-citizen gives them reasonable grounds
to declare him or her “inadmissible” to Canada — i.e. to issue a removal order.
The resulting “certificate of inadmissibility” (also called a “security
certificate”) is then referred to the Federal Court for a review of its
reasonableness. If a Federal Court judge (the “designated judge”) finds the
certificate to be reasonable, the non-citizen named in that certificate (the
“named person”) becomes subject to a removal order.

[7]The IRPA scheme was adopted by Parliament
in 2001, as a successor to an analogous scheme contained in the Immigration
Act,R.S.C. 1985, c. I-2. In the wake of the attacks of September
11, 2001, it increasingly came to be used as a means of detaining suspected
terrorists and eliminating the perceived threat posed by them: K. Roach, “Sources
and Trends in Post-9/11 Anti-terrorism Laws”, in B. J. Goold and L. Lazarus, eds.,
Security and Human Rights (2007), 227, at p. 233. From a practical
perspective, the IRPA scheme is in some respects more advantageous for
the state than criminal proceedings. It has a lower standard of proof and is
more protective of confidential national security information than the criminal
law: ibid. As will be discussed further below, any information that
would be injurious to national security or to the safety of any person is not
disclosed to the named person. This information can nevertheless be presented
to the designated judge in closed hearings and relied upon by her in assessing
the security certificate’s reasonableness.

[8]The constitutionality of the IRPA scheme
was challenged by Mr. Harkat and other non-citizens named in security
certificates. In Charkaoui I, this Court found that the IRPA
scheme deprived named persons of their life, liberty, and security of the
person in a manner that was not in accordance with principles of fundamental
justice, contrary to s. 7 of the Charter. It found that the IRPA
scheme precluded the judge from making a decision based on all the relevant
facts and law, because it did not provide for representation of the named
person in the closed portion of the proceedings. It also held that the IRPA
scheme violated the principle that a person must have the ability to know and
meet the case against him, because there was not full disclosure of the
government’s case to the named person or any substantial substitute for full
disclosure.

[9]The Court concluded that these breaches could
not be justified under s. 1 of the Charter, because the IRPA
scheme did not minimally impair the named person’s rights. Other types of
closed proceedings, both in Canada and abroad, accomplished the goal of
protecting confidential national security information less intrusively. For
example, in the United Kingdom, special advocates were appointed to receive
disclosure on an appellant’s behalf and to defend his or her interests in
closed hearings before the Special Immigration Appeals Commission. These
special advocates were bound not to reveal confidential information to anyone
or (subject to narrow exceptions) to communicate with the appellant. While
that system was not without its drawbacks, this Court concluded that, “without
compromising security, it better protects the named person’s s. 7 interests”: Charkaoui
I, atpara. 86.

[10]In response to this Court’s ruling, Parliament
made several amendments to the IRPA scheme: An Act to amend the
Immigration and Refugee Protection Act (certificate and special advocate) and
to make a consequential amendment to another Act, S.C. 2008, c. 3; the
amended IRPA scheme is reproduced in the Appendix to these reasons. In
particular, it created a role for special advocates, who protect the interests
of the named person in closed hearings after having received disclosure of the
entire record.

B.The Proceedings

[11]In 2002, the Solicitor General of Canada and the
Minister of Citizenship and Immigration issued a first security certificate
declaring Mr. Harkat inadmissible to Canada on national security grounds. After
the successful constitutional challenge and the amendment of the IRPA
scheme, the ministers issued a second security certificate against Mr. Harkat
and commenced new proceedings before the Federal Court.

[12]Disclosure issues arose during the proceedings
with respect to the individuals (the “human sources”) who secretly provided
information regarding Mr. Harkat to the Canadian Security Intelligence Service
(“CSIS”). The special advocates sought to obtain disclosure of the identity of
the CSIS human sources, as well as permission to interview and to cross-examine
them in a closed hearing. Noël J. rejected this request. He reasoned that the
common law police informer privilege, which is a rule against the disclosure of
any information that might identify a police informer, should be extended to
cover CSIS human sources: 2009 FC 204, [2009] 4 F.C.R. 370.

[13] At a later point during the disclosure process,
it was discovered that the judge and the special advocates had been provided
with an incomplete and misleading document regarding one of the CSIS human
sources. The document provided to Mr. Harkat’s special advocates failed to
disclose that a 2002 polygraph test conducted on the relevant source initially
revealed him or her to be untruthful. As a remedy, Noël J. ordered the
disclosure of unredacted human source files to the special advocates: 2009 FC
553, 345 F.T.R. 143; 2009 FC 1050, [2010] 4 F.C.R. 149.

[14]The special advocates also sought to compel the
ministers to obtain updated information from foreign intelligence agencies on
several alleged terrorists with whom Mr. Harkat was claimed to have associated.
They were ultimately dissatisfied with the efforts undertaken by the ministers
and sought a stay of proceedings. Noël J. rejected this request, finding that
the ministers took reasonable steps to get updated information from foreign
intelligence agencies: 2010 FC 1243, 380 F.T.R. 255, at Annex “A”.

[15]Mr. Harkat also sought to have the summaries of
intercepted conversations excluded from the evidence on the ground that the
original recordings and notes of these conversations, in which he allegedly
participated or in which he was allegedly a subject of conversation, were
destroyed pursuant to CSIS policy OPS-217. Alternatively, he sought a stay of
proceedings in consideration of a number of breaches. Noël J. found that Mr.
Harkat suffered no prejudice from the destruction of those original operational
materials: 2010 FC 1243. He reasoned that the summaries of the conversations
were prepared in a way that ensured their accuracy, and that they were
corroborated by the overall narrative about Mr. Harkat which emerged during the
hearings. Consequently, he refused to exclude them from the evidence against
Mr. Harkat.

[16]Finally, Mr. Harkat challenged the
constitutionality of the amended IRPA scheme. Noël J. found the regime
to be constitutional: 2010 FC 1242, [2012] 3 F.C.R. 432. In his view, the
special advocates provided a substantial substitute for full disclosure to Mr.
Harkat and vigorously defended his interests during the closed portion of the
proceedings.

[17]After consideration of evidence tendered in both
public and closed hearings, Noël J. came to the conclusion that the certificate
declaring Mr. Harkat inadmissible to Canada was reasonable: 2010 FC 1241,
[2012] 3 F.C.R. 251. He made adverse findings of credibility against Mr. Harkat
and found that the evidence provided reasonable grounds to believe that Mr.
Harkat had been involved with terrorist organizations. He held that Mr.
Harkat’s behaviour and lies were consistent with the theory that he had come to
Canada as a “sleeper” agent for terrorist organizations.

[18]Mr. Harkat appealed Noël J.’s conclusions. The
Federal Court of Appeal (per Létourneau J.A.) allowed the appeal in
part: 2012 FCA 122, [2012] 3 F.C.R. 635. It agreed with Noël J.’s conclusion
that the amended IRPA scheme is constitutional. However, it found that
the identity of CSIS human sources is not protected by privilege. It also
excluded from the evidence the summaries of intercepted conversations to which
Mr. Harkat had not been privy. It remitted the matter to Noël J. for
redetermination on the basis of what remained of the record after the exclusion
of the summaries.

II.Issues

[19]The ministers appeal to this Court, seeking the
reinstatement of Noël J.’s conclusion that the security certificate was
reasonable. They also ask for recognition of the CSIS human source privilege.

[20]Mr. Harkat cross-appeals. He asks this Court to
find the amended IRPA scheme unconstitutional. Alternatively, he seeks a
new reasonableness hearing before a new designated judge, the exclusion of the
summaries of all the intercepted conversations for which the original CSIS
operational materials were destroyed, and permission for his special advocates
to interview and cross-examine the human sources. He also takes issue with Noël
J.’s weighing of “open source” evidence (such as books on terrorism and
publications in political science periodicals), which led him to conclude that
the individuals with whom Mr. Harkat associated were members of terrorist
organizations.

[21]In addition, the special advocates contest Noël
J.’s refusal to order a stay of proceedings. They contend that the ministers
breached their duties of candour and utmost good faith, and that the
proceedings did not allow them to meaningfully test the case brought against
Mr. Harkat.

B.Are CSIS human sources covered by privilege and
can they be cross-examined?

C.Did the designated judge err in refusing to
exclude the summaries of intercepted conversations?

D.Did the ministers breach their duties of candour
and utmost good faith?

E.Were the proceedings against Mr. Harkat fair?

F.Did the designated judge err in concluding that
the security certificate was reasonable?

III.Analysis

Preliminary Comment

[23] At the request of the ministers, this Court
conducted two distinct hearings on this appeal. One was open to the public,
while the second was held behind closed doors. Having heard the confidential
submissions, it is my view that it was unnecessary to conduct a portion of the
appeal hearing behind closed doors.

[24]The open court principle is “a hallmark of a
democratic society and applies to all judicial proceedings”: Vancouver Sun
(Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 23; see also D. M.
Paciocco, “When Open Courts Meet Closed Government” (2005), 29 S.C.L.R.
(2d) 385, at pp. 391-95; Canadian Broadcasting Corp. v. New Brunswick
(Attorney General),[1996] 3 S.C.R. 480, at para. 20. “National
security does not negate the open court principle”: C. Forcese, National
Security Law: Canadian Practice in International Perspective (2008), at p.
402. The Supreme Court of the United Kingdom recently commented unfavourably on
a hearing that it held behind closed doors at the request of the government,
which had raised national security concerns: Bank Mellat v. H. M. Treasury,
[2013] UKSC 38, [2013] 4 All E.R. 495, at para. 60, per Lord Neuberger
P.S.C. It noted that closed evidence is factual in nature, whereas the points
debated before appellate courts are essentially legal: ibid.
Consequently, the Supreme Court found that closed hearings before it would
rarely, if ever, be necessary for the proper disposition of an appeal.

[25] The issues in this appeal do not turn on
confidential information and could have been debated fully in public without
any serious risk of disclosure, supplemented where necessary by brief closed
written submissions and by the closed record. The special advocates could have
been given judicial permission to make public submissions, so long as they
refrained from disclosing confidential information: see s. 85.4(2) and (3) of
the Immigration and Refugee Protection Act (“IRPA”).

[26]The content of the closed hearing overlapped
significantly with the open hearing and did not assist this Court in deciding
the issues before it. It served only to foster an appearance of opacity of
these proceedings, which runs contrary to the fundamental principles of
transparency and accountability.

[28]Mr. Harkat and his special advocates contend
that the IRPA scheme fails to provide a fair process to the named
person, as required by s. 7 of the Charter. They argue that the regime
is unconstitutional because it provides insufficient disclosure to the named
person, does not allow the special advocates to communicate freely with the
named person, and allows for the admission of hearsay evidence.

[29]After providing a brief overview of the IRPA
scheme, I will address in turn Mr. Harkat’s rights under s. 7 of the Charter,
the principles that guide the scheme, and the scheme’s alleged defects.

(1)Overview of the IRPA Scheme

(a)Commencement of Proceedings

[30]A security certificate may be issued by the
ministers for the removal from Canada of a non-citizen (whether a permanent
resident or a foreign national) who is inadmissible on security grounds. The
grounds for inadmissibility include engaging in terrorism, being a danger to
the security of Canada, engaging in acts of violence that would or might
endanger the lives or safety of persons in Canada, or being a member of an
organization that engages in terrorism: s. 34, IRPA. The ministers must
have reasonable grounds to believe that the facts giving rise to
inadmissibility have occurred, are occurring, or may occur: s. 33, IRPA.

[31]As a practical matter, the process commences
when CSIS presents a Security Intelligence Report (“SIR”) to the ministers. The
SIR sets out in detail the allegations and evidence grounding inadmissibility.
If the ministers conclude that the allegations in the SIR are reasonably
grounded, they issue a security certificate.

[32]Once the certificate is issued, the ministers
must refer it to the Federal Court: s. 77(1), IRPA. The Federal Court
judge who is designated to hear the case “shall determine whether the
certificate is reasonable and shall quash the certificate if he or she
determines that it is not”: s. 78, IRPA. If the designated judge deems
the certificate to be reasonable, the named person is inadmissible and the
certificate becomes a removal order in force: s. 80, IRPA. The named
person may be arrested and detained for the duration of the proceedings before
the Federal Court: s. 81, IRPA.

(b) The Disclosure of Summaries to the Named Person

[33]The named person must be given summaries of the
information and evidence which allow him to be reasonably informed of the case
against him: ss. 77(2) and 83(1)(e), IRPA. The summaries must
“not include anything that, in the judge’s opinion, would be injurious to
national security or endanger the safety of any person if disclosed”: s. 83(1)(e),
IRPA.

(c)Special Advocates

[34]The judge must appoint one or more special
advocates to protect the interests of the named person in closed hearings: s.
83(1)(b), IRPA. These hearings are held in camera and ex
parte, in order to permit the Minister to present information and evidence
the public disclosure of which could be injurious to national security or
endanger the safety of a person: s. 83(1)(c), IRPA.

[35]Special advocates are security-cleared lawyers
whose role is to protect the interests of the named person and “to make up so
far as possible for the [named person’s] own exclusion from the evidentiary
process”: S. Sedley, “Terrorism and security: back to the future?”, in D.
Cole, F. Fabbrini and A. Vedaschi, eds., Secrecy, National Security and the
Vindication of Constitutional Law (2013), 13, at p. 16. During the closed
hearings, they perform the functions that the named person’s counsel (the
“public counsel”) performs in the open hearings. They do so by challenging the
Minister’s claims that information or evidence should not be disclosed, and by
testing the relevance, reliability, and sufficiency of the secret evidence: s.
85.1(1) and (2), IRPA. They are active participants in the closed hearings.
They may make submissions and cross-examine witnesses who appear in those
hearings: s. 85.2(a) and (b), IRPA. The IRPA scheme
also provides that the special advocates may “exercise, with the judge’s
authorization, any other powers that are necessary to protect the interests” of
the named person: s. 85.2(c), IRPA.

[36]No solicitor-client relationship exists between
the special advocates and the named person: s. 85.1(3), IRPA. However,
solicitor-client privilege is deemed to apply to exchanges between the special
advocates and the named person, provided that those exchanges would attract
solicitor-client privilege at common law: s. 85.1(4), IRPA. As Lutfy
C.J. put it, “[a]s between special advocates and named persons, Division 9
protects information and not relationships. . . . The information that passes
between them, absent the solicitor and client relationship, is deemed to be
protected”: Almrei (Re),2008 FC 1216, [2009] 3 F.C.R. 497, at
paras. 56-57.

[37]Strict communication rules apply to special
advocates, in order to prevent the inadvertent disclosure of sensitive
information. After the special advocates are provided with the confidential
information and evidence, they “may, during the remainder of the proceeding,
communicate with another person about the proceeding only with the judge’s
authorization and subject to any conditions that the judge considers
appropriate”: s. 85.4(2), IRPA. Read plainly, “this prohibition covers
all information about the proceeding from both public and private sessions,
including any testimony given in the absence of the public and the named person
and their counsel”: Almrei, at para. 16. By contrast, any other person
— such as the ministers’ counsel or the court personnel in attendance at closed
hearings — is subject to significantly fewer restrictions on communication.
Other persons must refrain from communicating about the proceedings only (i) if
they have had a court-authorized communication with the special advocates and
the judge has specifically prohibited them from communicating with anyone else
about the proceeding, or (ii) if the communication would disclose the content
of a closed hearing: ss. 85.4(3), 85.5(a) and (b), IRPA.

(d)Admissibility of Evidence

[38]The usual rules of evidence do not apply to the
proceedings. Instead, “the judge may receive into evidence anything that, in
the judge’s opinion, is reliable and appropriate, even if it is inadmissible in
a court of law, and may base a decision on that evidence”: s. 83(1)(h), IRPA.

[39]The IRPA scheme provides that the judge’s
decision can be based on information or evidence that is not disclosed in
summary form to the named person: s. 83(1)(i). It does not specify
expressly whether a decision can be based in whole, or only in part, on
information and evidence that is not disclosed to the named person.

[40]In Charkaoui I, this Court found that the
IRPA scheme engages significant life, liberty, and security of the
person interests: paras. 12-16. Laws that interfere with these interests must
conform to the principles of fundamental justice. If they fail to do so, they
breach s. 7 of the Charterand fall to be justified under s. 1 of the Charter.

[41]Pursuant to the principles of fundamental
justice, a named person must be provided with a fair process: Charkaoui I,
at paras. 19-20. At issue in the present appeal are two interrelated aspects of
the right to a fair process: the right to know and meet the case, and the right
to have a decision made by the judge on the facts and the law. The named person
must “be informed of the case against him or her, and be permitted to respond
to that case”: Charkaoui I, at para. 53. Correlatively, the named
person’s knowledge of the case and participation in the process must be
sufficient to result in the designated judge being “exposed to the whole
factual picture” of the case and having the ability to apply the relevant law
to those facts: ibid., at para. 51.

[42]This said, the assessment of whether a process
is fair must take into account the legitimate need to protect information and
evidence that is critical to national security. As I wrote in Charkaoui I,
“[i]nformation may be obtained from other countries or from informers on
condition that it not be disclosed. Or it may simply be so critical that it
cannot be disclosed without risking public security”: para. 61.

[43]Full disclosure of information and evidence to
the named person may be impossible. However, the basic requirements of
procedural justice must be met “in an alternative fashion appropriate to the
context, having regard to the government’s objective and the interests of the
person affected”: Charkaoui I, at para. 63. The alternative proceedings
must constitute a substantial substitute to full disclosure. Procedural
fairness does not require a perfect process — there is necessarily some give
and take inherent in fashioning a process that accommodates national security
concerns: Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4
S.C.R. 3, at para. 46.

[44]The overarching question, therefore, is whether
the amended IRPAscheme provides a named person with a fair process,
taking into account the imperative of protecting confidential national security
information.

(3)The Guiding Principles of the IRPA Scheme

[45]The alleged defects in the IRPA scheme
must be assessed in light of the scheme’s overall design. Two central
principles guide the scheme.

[46]First, the designated judge is intended to play
a gatekeeper role. The judge is vested with broad discretion and must ensure
not only that the record supports the reasonableness of the ministers’ finding
of inadmissibility, but also that the overall process is fair: “. . . in a special
advocate system, an unusual burden will continue to fall on judges to respond
to the absence of the named person by pressing the government side more
vigorously than might otherwise be the case” (C. Forcese and L. Waldman,“Seeking
Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New
Zealand on the Use of ‘Special Advocates’ in National Security Proceedings”
(2007) (online), at p. 60). Indeed, the IRPA scheme expressly requires
the judge to take into account “considerations of fairness and natural justice”
when conducting the proceedings: s. 83(1)(a), IRPA. The
designated judge must take an interventionist approach, while stopping short of
assuming an inquisitorial role.

[47]Second, participation of the special advocates
in closed hearings is intended to be a substantial substitute for personal
participation by the named person in those hearings. With respect to the
confidential portion of the case against the named person, the special
advocates must be in a position to act as vigorously and effectively as the
named person himself would act in a public proceeding. Indeed, Parliament added
special advocates as a feature of the IRPA scheme in order to bring it
into compliance with the substantive requirements of s. 7 of the Charter,
as articulated in Charkaoui I. Whether the scheme allows for this
intention to become a reality is the central constitutional issue in this
appeal, to which I now turn.

(4)The Alleged Shortfalls of the IRPA Scheme

[48]In essence, Mr. Harkat alleges that the disclosure
of public summaries and the representation of the interests of the named person
by special advocates do not suffice to bring the IRPA scheme into
compliance with the requirements of s. 7 of the Charter. I will address
each of the alleged defects of the scheme in turn.

(a)Does the Scheme Provide the Named Person With
Sufficient Disclosure?

[49]Mr. Harkat contends that the public summaries of
the closed record are too vague and general. In his view, they do not allow a
named person to know and meet the case against him or her. He argues that the
essence of the right to know and meet a case is the ability to meet detail with
detail. He also contends that the IRPA scheme takes too categorical an
approach to disclosure: a named person will never obtain disclosure of
information which would be injurious to national security or to the safety of
any person, regardless of the importance of disclosure to the named person’s
case. A less rights-impairing alternative would be a balancing approach such as
the one found in s. 38.06(2) of the Canada Evidence Act, R.S.C. 1985, c.
C-5(“CEA”), which permits the public interest in non-disclosure
to be balanced against the public interest in disclosure.

[50]In my view, the IRPA scheme provides
sufficient disclosure to the named person to be constitutionally compliant. I
base this conclusion on the designated judge’s statutory duty to ensure that
the named person is reasonably informed of the Minister’s case throughout the
proceedings.

(i)The IRPA Scheme Requires an
Incompressible Minimum Amount of Disclosure to the Named Person

[51]At first blush, the provisions of the IRPA
scheme appear to give precedence to confidentiality of information over the
named person’s right to know and meet the case. Section 83(1)(e)
provides that,

throughout the proceeding, the judge
shall ensure that the permanent resident or foreign national is provided with a
summary of information and other evidence that enables them to be reasonably
informed of the case made by the Minister in the proceeding but that does
not include anything that, in the judge’s opinion, would be injurious to
national security or endanger the safety of any person if disclosed;

Thus, the content of the
summaries must be tailored to satisfy the overriding proviso that no information
or evidence injurious to national security or to the safety of any person may
be disclosed.

[52]The IRPA scheme also provides, at s.
83(1)(i), that the judge may base his decision on information or
evidence of which the named person has not been informed in summary form: “[T]he judge may base a decision on information or other evidence
even if a summary of that information or other evidence is not provided to the
permanent resident or foreign national . . .”.

[53]The combination of ss. 83(1)(e) and
83(1)(i) could conceivably lead to a situation where the judge makes a
decision on the reasonableness of the security certificate despite the fact
that the named person has only received severely truncated disclosure. Noël J.
even contemplated a scenario where the named person receives virtually no
disclosure: “There may come a time when the only
evidence to justify inadmissibility on security ground originates from a very
sensitive source, and that the disclosure of such evidence, even through a
summary, would inevitably disclose the source” (2010 FC 1242, at para. 59). He
nevertheless found the disclosure provisions of the IRPA scheme to be
constitutional.

[54]In my view, Noël J. erred in interpreting the IRPA
scheme in a manner that allows for that scenario. Charkaoui I makes
clear that there is an incompressible minimum amount of disclosure that the
named person must receive in order for the scheme to comply with s. 7 of the Charter.
He or she must receive sufficient disclosure to know and meet the case against
him or her.

[55]Parliament amended the IRPA scheme with
the intent of making it compliant with the s. 7 requirements expounded in Charkaoui
I,and it should be interpreted in light of this intention: R. v.
Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, at paras. 28-29. The IRPA
scheme’s requirement that the named person be “reasonably informed” (“suffisamment
informé”) of the Minister’s case should be read as a recognition that the
named person must receive an incompressible minimum amount of disclosure.

[56]Under the IRPA scheme, a named person is
“reasonably informed” if he has personally received sufficient disclosure to be
able to give meaningful instructions to his public counsel and meaningful
guidance and information to his special advocates which will allow them to challenge
the information and evidence relied upon by the Minister in the closed
hearings. Indeed, the named person’s ability to answer the Minister’s case
hinges on the effectiveness of the special advocates, which in turn depends on
the special advocates being provided with meaningful guidance and information.
As the House of Lords of the United Kingdom put it in referring to disclosure
under the British special advocates regime, the named person

must be given sufficient
information about the allegations against him to enable him to give effective
instructions in relation to those allegations. . . . Where . . . the open
material consists purely of general assertions and the case . . . is based
solely or to a decisive degree on closed materials the requirements of a fair
trial will not be satisfied, however cogent the case based on the closed
materials may be.

(Secretary
of State for the Home Department v. A.F.(No. 3), [2009] UKHL 28,
[2009] 3 All E.R. 643, at para. 59, per Lord Phillips of Worth
Matravers)

I would add that the
named person need not only be given sufficient information about the
allegations against him, but also about the evidence on the record.

[57]The level of disclosure required for a named
person to be reasonably informed is case-specific, depending on the allegations
and evidence against the named person. Ultimately, the judge is the arbiter of
whether this standard has been met. At the very least, the named person must
know the essence of the information and evidence supporting the allegations.
This excludes the scenario where the named person receives no disclosure
whatsoever of essential information or evidence.

[58]The IRPA scheme is silent as to what
happens if there is an irreconcilable tension between the requirement that the
named person be “reasonably informed”, on the one hand, and the imperative that
sensitive information not be disclosed, on the other. The IRPA scheme
does not provide that the “reasonably informed” standard can be compromised.
But nor does it provide that sensitive information can be disclosed where this
is absolutely necessary in order for the “reasonably informed” standard to be
met.

[59]In my view, the necessary outcome of situations
where there is an irreconcilable tension is that the Minister must withdraw the
information or evidence whose non-disclosure prevents the named person from
being reasonably informed. In some cases, this may effectively compel the
Minister to put an end to the proceedings.

[60]To hold that the Minister can rely on essential
information and evidence of which the named person cannot be reasonably
informed would force the judge to violate the responsibility expressly placed
on him by the statute, i.e.his duty to ensure that the named person
remain reasonably informed throughout the proceedings. It cannot have been
Parliament’s intent to design a scheme in which the judge is required to
violate the responsibilities placed upon him. Consequently, the IRPA
scheme must be interpreted as precluding the Minister from bringing a case in
respect of which the named person cannot be kept reasonably informed. The
scheme mandates that the named person remain reasonably informed — i.e. that he
be able to give meaningful instructions to his public counsel and meaningful
guidance and information to his special advocates — throughout the proceedings.
If the named person is not reasonably informed, the proceedings will not have
been in compliance with the IRPA scheme and the judge cannot confirm the
certificate’s reasonableness. In such a case, the judge must quash the certificate,
pursuant to s. 78 of the IRPA.

(ii)Only Information or Evidence That Raises a
Serious Risk Must Be Withheld

[61]Only information and evidence that raises a serious
risk of injury to national security or danger to the safety of a person can be
withheld from the named person. The judge must ensure throughout the
proceedings that the Minister does not cast too wide a net with his claims of
confidentiality.

[62]While the IRPA scheme provides that
closed hearings must be held when the disclosure of information could be
injurious (s. 83(1)(c), IRPA), it mandates the withholding of
information from public summaries only if its disclosure would, in
the judge’s opinion, be injurious (s. 83(1)(e), IRPA). The
judge must err on the side of caution in ordering closed hearings during which
he can ascertain the validity of the Minister’s position with respect to the
sensitivity of given information or evidence. However, once the judge has heard
the parties, he must ensure that only information or evidence which would
injure national security or endanger the safety of a person is withheld from
the named person. “It is the Ministers who bear the burden of establishing that
disclosure not only could but would be injurious to national security,
or endanger the safety of any person”: Jaballah, Re, 2009 FC 279, 340
F.T.R. 43, at para. 9, per Dawson J. (emphasis added).

overclaiming exacerbates the
transparency and procedural fairness problems that inevitably accompany any proceeding
that can not be fully open because of [national security confidentiality]
concerns. It also promotes public suspicion and cynicism about legitimate
claims by the Government of national security confidentiality.

(Commission
of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report
of the Events Relating to Maher Arar: Analysis and Recommendations (2006),
at p. 302)

[64]The judge is the gatekeeper against this type of
overclaiming, which undermines the IRPA scheme’s fragile equilibrium.
Systematic overclaiming would infringe the named person’s right to a fair
process or undermine the integrity of the judicial system, requiring a remedy
under s. 24(1) of the Charter.

(iii)The Absence of a Balancing Approach Does Not Make the Scheme Unconstitutional

[65]In addition, Mr. Harkat argues that the IRPA
scheme’s approach to disclosure is unconstitutional because it fails to provide
for a balancing of countervailing interests. In his view, s. 7 of the Charter
requires the adoption of an approach similar to the one found in s. 38.06(2) of
the CEA, which allows the judge to order disclosure of national security
information if “the public interest in disclosure outweighs in importance the
public interest in non-disclosure”.

[66]I would reject this contention. Section 7 of the
Charterdoes not require a balancing approach to disclosure. Rather, it
requires a fair process. “There is no free-standing
principle of fundamental justice requiring a proper balancing of interests in
general, or requiring the balancing of interests in decisions about
disclosure”: H. Stewart, Fundamental Justice: Section 7 of the Canadian
Charter of Rights and Freedoms (2012), at p. 229. Parliament’s choice to
adopt a categorical prohibition against disclosure of sensitive information, as
opposed to a balancing approach, does not as such constitute a breach of the
right to a fair process.

(b)Are the Special Advocates a “Substantial
Substitute” to Participation by the Named Person?

[67]As discussed, the named person and his public
counsel do not have access to the closed record, nor can they participate in
the closed hearings. Parliament added the role of special advocates to the IRPA
scheme so that they could serve as a proxy for the named person in the closed
portion of the proceedings. Mr. Harkat argues that the restrictions on the
special advocates’ ability to communicate with the named person prevent them
from effectively protecting the named person’s interests. Specifically, he
claims that communications between the named person and the special advocates
should not be subject to restrictions. He also contends that the special
advocates will be unable to seek judicial authorization without breaching
solicitor-client privilege. As a consequence, in his view, the addition of
special advocates to the regime fails to address the concerns voiced by this
Court in Charkaoui I.

[68]The communications restrictions imposed on
special advocates are significant, requiring judicial authorization for any communication
regarding the proceedings between the special advocates and the named person or
a third party, after the special advocates have received confidential
materials. However, they do not render the scheme unconstitutional. I come to
this conclusion for three reasons.

[69]First, the restrictions on communications by the
special advocates are not absolute. They can be lifted with judicial
authorization, subject to conditions deemed appropriate by the designated
judge: s. 85.4(2), IRPA. While this process is
less fluid and efficient than the unfettered communications that prevail
between a lawyer and his client, it should be remembered that s. 7 of the Charter
does not guarantee a perfect process. The judicial authorization process gives
the designated judge a sufficiently broad discretion to allow all
communications that are necessary for the special advocates to perform their
duties.

[70]The broad discretion conferred by the IRPA
scheme averts unfairness that might otherwise result from the communications
restrictions. The designated judge can ensure that the special advocates
function as closely as possible to ordinary counsel in a public hearing. The
restrictions on communications are designed to avert serious risks of
disclosure of information or evidence whose disclosure would be injurious to
national security or to the safety of any person. While the IRPA scheme
requires the judge to minimize risks of inadvertent disclosure of information,
the judge must also give special advocates significant latitude. The special
advocates are competent and security-cleared lawyers, who take their
professional and statutory obligations seriously. They have the ability to
distinguish between the public and confidential aspects of their case. The
judge should take a liberal approach in authorizing communications and only
refuse authorization where the Minister has demonstrated, on a balance of
probabilities, a real — as opposed to a speculative — risk of injurious
disclosure. As much as possible, the special advocates should be allowed to
investigate the case and develop their strategy by communicating with the named
person, the named person’s public counsel, and third parties who may bring
relevant insights and information.

[71]Second, the named person
and his public counsel can send an unlimited amount of one-way communications
to the special advocates at any time throughout the proceedings. This is
significant. As discussed above, the public summaries provided on an ongoing
basis to the named person will ensure that he or she is sufficiently informed
to provide meaningful guidance and information to the special advocates. These
summaries should elicit helpful one-way communications from the named person to
the special advocates. And these one-way communications may in turn give rise
to requests from the special advocates for judicial permission to communicate
with the named person in order to obtain needed clarifications or additional
information.

[72]Finally, the record does not support the
conclusion that the IRPA scheme is unconstitutional on the basis that
the special advocates must necessarily breach solicitor-client privilege in
order to obtain judicial permission to communicate. As Noël J. noted, “[t]he
question of assessing solicitor-client [privilege] remains theoretical in the
case at hand. The requests to communicate presented did not directly or
indirectly reveal such information”: 2010 FC 1242, at para. 178. Moreover, the evolving practices of the Federal Court may
substantially lessen the tension between judicial authorization and privilege.
For example, the special advocates can minimize the risk of revealing their
litigation strategy by seeking to make submissions to the designated judge in
the absence of the ministers’ lawyers: Almrei, 2008 FC 1216, at para.
65.

[73]The issue of how to reconcile the judicial
authorization process with solicitor-client privilege should be decided if and
when it arises on the facts of a case: Almrei, 2008 FC 1216, at para.
41; Almrei, Re, 2009 FC 322, 342 F.T.R. 11, at para. 24. It may be that
an exception to solicitor-client privilege could be recognized in such
circumstances: Smith v. Jones, [1999] 1 S.C.R. 455, at para. 53, per
Cory J.; Almrei, 2008 FC 1216, at paras. 60-62. Or it may instead be
necessary to recognize that, in cases where judicial authorization cannot be
granted without a breach of solicitor-client privilege, the proceedings fail to
meet the requirements of s. 7 of the Charter and that a remedy should be
granted under s. 24(1) of the Charter.

(c)Does the Admission of Hearsay Evidence Render
the Scheme Unconstitutional?

[74]The IRPA scheme provides that the usual
rules of evidence do not apply to the security certificate proceedings. Rather,
any evidence that the judge determines to be “reliable and appropriate” is
admissible: s. 83(1)(h), IRPA. It is argued that this denies the
named person’s s. 7Charter rights, since the special advocates will be
unable to meaningfully test the evidence.

[75]It is true that some evidence which is
admissible under the IRPA scheme cannot be tested for reliability and
accuracy in the usual manner. For example, the IRPA scheme would allow
the admission of a foreign intelligence agency’s report that the judge deems
“reliable and appropriate”, despite the fact that it is hearsay. The special
advocates will not have had the opportunity to cross-examine the foreign
sources quoted in the report or the operatives who compiled it.

[76] While s. 83(1)(h) of the IRPA may
result in the admission of hearsay evidence and deny the special advocates the
ability to cross-examine sources, it does not violate s. 7 of the Charter.
As this Court recognized in R. v. L. (D.O.), [1993] 4 S.C.R. 419, “the rules of evidence have not been constitutionalized into
unalterable principles of fundamental justice”: p. 453, per
L’Heureux-Dubé J. As discussed, s. 7 guarantees a fundamentally fair process.
The rule against hearsay evidence and the right to cross-examine witnesses
simply provide a means towards such a process, by screening out unreliable
evidence: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 48.
The IRPA scheme achieves this purpose of excluding unreliable evidence
by alternative means. It provides the designated judge with broad discretion to
exclude evidence that is not “reliable and appropriate”. This broad discretion
allows the judge to exclude not only evidence that he or she finds, after a
searching review, to be unreliable, but also evidence whose probative value is
outweighed by its prejudicial effect against the named person.

(5)Concluding Remarks on the Constitutionality of
the IRPA Scheme

[77]I have concluded that the impugned provisions of
the IRPA scheme are constitutional. They do not violate the named
person’s right to know and meet the case against him, or the right to have a
decision made on the facts and the law. However, it must be acknowledged that
these provisions remain an imperfect substitute for full disclosure in an open
court. There may be cases where the nature of the allegations and of the
evidence relied upon exacerbate the limitations inherent to the scheme, resulting
in an unfair process. In light of this reality, the designated judge has an
ongoing responsibility to assess the overall fairness of the process and to
grant remedies under s. 24(1) of the Charterwhere appropriate —
including, if necessary, a stay of proceedings.

B.Are CSIS Human Sources Covered by Privilege and
Can They Be Cross-Examined?

[78]Mr. Harkat’s special advocates ask the Court for
an order permitting them to interview and cross-examine the CSIS human sources
relied upon by the Minister in the case against him. Noël J. denied this
order, holding that the identity of the sources and information which tends to
reveal their identity is covered by a common law “class” privilege.

[79]The Federal Court of Appeal disagreed. It held
that, unlike police informers, CSIS human sources are not protected by common
law class privilege. However, it did not deal with whether the human sources
could be cross-examined.

[80]I agree with the Federal Court of Appeal that
CSIS human sources are not protected by a class privilege. However, this is
not to say that they are left entirely unprotected by the security certificate
regime. The IRPA scheme provides a mechanism to protect their identity,
as I will now discuss.

(1)Does Privilege Attach to CSIS Human Sources?

[81]It is important to note at the outset that the IRPA
scheme provides protection for the identity of sources and of information that
tends to reveal that identity. Indeed, the starting point under the IRPA
scheme is that all information whose disclosure would be injurious to national
security or endanger the safety of a person is protected from disclosure to the
named person and to the public: s. 83(1)(d). In most cases, the disclosure of the identity of human sources
would both be injurious to national security and endanger the safety of those
sources. Consequently, their identity will generally be protected from
disclosure under the IRPA scheme.

[82]As a limited exception to this general principle
of non-disclosure, the IRPA scheme provides that special advocates get
full disclosure of all the evidence provided by the Minister to the judge: s.
85.4(1). The Minister has no obligation, however, to disclose privileged
materials to anyone.

[83]It thus becomes necessary to determine whether
the identities of CSIS human sources, and related information, are privileged.
But it is important to bear in mind that even if they are not privileged, the
judge under the IRPA scheme has the duty to prevent disclosure to the
public and to the named person of this information if it would be injurious to
national security or the safety of the sources. The information will thus
generally remain within the confines of the closed circle formed by the
designated judge, the special advocates — who, it bears repeating, are
security-cleared lawyers — and the Minister’s lawyers.

[84]Against this background, I come to the question:
Are the identities of CSIS human sources and information that might reveal
their identity protected by common law privilege?

[85]It is argued that police informer privilege
attaches to CSIShuman sources. I agree with the Federal Court of
Appeal that it does not. Traditional police work involving informers, on the
one hand, and the collection of security intelligence and information, on the
other, are two different things. Indeed, Parliament created CSIS in recognition
of this emerging distinction: Charkaoui v. Canada (Citizenship and
Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 (“Charkaoui II”), at
paras. 21-22. Courts developed police informer privilege at a time when the
police investigated crimes locally and collected evidence mainly for use in
criminal trials. By contrast, the intelligence gathering conducted by CSIS
takes place on a global scale and is geared towards prospectively preventing
risks: K. Roach, “The eroding distinction between intelligence and evidence in
terrorism investigations”, in N. McGarrity, A. Lynch and G. Williams, eds.,
Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11
(2010), 48. Police have an incentive not to promise confidentiality except
where truly necessary, because doing so can make it harder to use an informer
as a witness. CSIS, on the other hand, is not so constrained. It is concerned
primarily with obtaining security intelligence, rather than finding evidence
for use in court. While evidence gathered by the police was traditionally used
in criminal trials that provide the accused with significant evidentiary
safeguards, the intelligence gathered by CSIS may be used to establish criminal
conduct in proceedings that — as is the case here — have relaxed rules of
evidence and allow for the admission of hearsay evidence. The differences
between traditional policing and modern intelligence gathering preclude
automatically applying traditional police informer privilege to CSIS human
sources.

[86]I have found no persuasive authority for the
proposition that police informer privilege applies to CSIS human sources. In R.
v. Y. (N.),2012 ONCA 745, 113 O.R. (3d) 347, cited as authority by
Abella and Cromwell JJ., the issue was whether an informer who had worked
successively for CSIS and the RCMP was a state agent for purposes of applying
the Charter.The court remarked that one distinction between a
state agent and a confidential informer is that privilege applies only to the
latter (para. 122). The court’s reasons can be read as assuming that privilege
would attach to a CSIS informer, but that point was not squarely before the
court and was not decided.

[87]Nor, in my view, should this Court create a new
privilege for CSIS human sources. This Court has stated that “[t]he law
recognizes very few ‘class privileges’” and that “[i]t is likely that in future
such ‘class’ privileges will be created, if at all, only by legislative
action”: R. v. National Post, 2010 SCC 16,[2010] 1 S.C.R. 477,
at para. 42. The wisdom of this applies to the proposal that privilege be
extended to CSIS human sources: Canada (Attorney General) v. Almalki,2011 FCA 199, [2012] 2 F.C.R. 594, at paras. 29-30, per Létourneau
J.A. If Parliament deems it desirable that CSIS human sources’ identities and
related information be privileged, whether to facilitate coordination between
police forces and CSIS or to encourage sources to come forward to CSIS (see
reasons of Abella and Cromwell JJ.), it can enact the appropriate protections.
Finally, the question arises whether judges should have the power to shield the
identity of human sources from special advocates on a case-by-case basis where
they conclude that public interests in non-disclosure outweigh the benefits of
disclosure. This question was not argued by the parties, and I offer no
comment on it, other than to note that the IRPA scheme already affords
broad protection to human sources by precluding the public disclosure of
information that would injure national security or endanger a person.

(2)Should the Special Advocates Be Authorized to
Interview and Cross-Examine the Human Sources?

[88]The special advocates ask this Court to rule
that they may interview and cross-examine the CSIS human sources who have
provided information used against Mr. Harkat.[1]
I have concluded that the identity of CSIS human sources is not privileged.
However, it does not follow from the absence of a privilege that special
advocates have an unlimited ability to interview and cross-examine human
sources. As discussed above, the designated judge may admit information
provided by these sources as hearsay evidence, if he concludes that the
evidence is “reliable and appropriate”: s. 83(1)(h), IRPA. The
Minister has no obligation to produce CSIS human sources as witnesses, although
the failure to do so may weaken the probative value of his evidence.

[89]This said, the special advocates may “exercise,
with the judge’s authorization, any other powers that are necessary to protect
the interests” of the named person: s. 85.2(c), IRPA. The
designated judge has the discretion to allow the special advocates to interview
and cross-examine human sources in a closed hearing. This discretion should be
exercised as a last resort. The record before us establishes that a generalized
practice of calling CSIS human sources before a court, even if only in closed
hearings, may have a chilling effect on potential sources and hinder CSIS’s
ability to recruit new sources. In most cases, disclosure to the special
advocates of the human source files and other relevant information regarding
the human sources will suffice to protect the interests of the named person.

[90]The case at hand is not one of those rare cases
in which it is necessary to give special advocates permission to interview and
cross-examine CSIS human sources. The special advocates contend that
cross-examination is necessary in order to test the credibility of the human sources,
to cross-examine them on Mr. Harkat’s motives for coming to Canada in the
mid-1990s, and to undermine the allegation that Mr. Harkat traveled to
Afghanistan. In my view, Mr. Harkat and his special advocates have had
sufficient opportunity to pursue those objectives, and the designated judge’s
weighing of the relevant evidence took into account the fact that it was
hearsay. Indeed, the evidence on the record allowed the special advocates to
undermine the credibility of one of the human sources and led Noël J. to rely
on information originating from this source only when corroborated: see 2010 FC
1241, at footnote 1. Moreover, Mr. Harkat testified with respect to his motives
for coming to Canada and denied the allegations that he visited Afghanistan. Noël
J. made a strong adverse finding of credibility against Mr. Harkat on these
issues: it is highly improbable that cross-examination of the human sources
could have bolstered his credibility. There is therefore no need for this Court
to authorize the exceptional measure of interviewing and cross-examining human
sources.

C.Did the Designated Judge Err in Refusing to
Exclude the Summaries of Intercepted Conversations?

[91]Mr. Harkat seeks the exclusion of summaries of
intercepted conversations that were tendered as evidence by the ministers,
pursuant to s. 24(1) of the Charter. He argues that CSIS prejudiced his ability to know and meet the case against him by destroying the original operational notes and recordings that were
the source materials for the summaries. Noël J. found the summaries to be
reliable and concluded that the destruction of the operational materials did
not prejudice Mr. Harkat. The Federal Court of Appeal disagreed, finding that
the destruction of the materials prejudiced Mr. Harkat’s ability to challenge
the reliability and accuracy of the summaries. As a remedy, it excluded the
summaries of intercepted conversations to which Mr. Harkat was not privy.

(1)Did the Destruction of Source Materials Result
in a Breach of Section 7 of the Charter?

[92]The original CSIS operational materials were
destroyed in accordance with CSIS internal policy OPS-217, which required the
systematic destruction of operational materials after operatives had completed
their final reports and summaries. In Charkaoui II, this Court found
that both the Canadian Security Intelligence Service Act, R.S.C. 1985,
C-23 (“CSIS Act”), and the right to procedural fairness of the named
person required CSIS “to retain all the information in its possession and to
disclose it to the ministers and the designated judge”: para. 62.

[93]As a result of policy OPS-217, the original
operational notes and recordings are lost evidence. Where the Minister loses
evidence that should have been disclosed, he has a duty to explain what
happened to it: R. v. La, [1997] 2 S.C.R. 680, at paras. 18-20. Where
the Minister is unable to satisfy the judge that the evidence was not destroyed
owing to unacceptable negligence, he has failed to meet his disclosure
obligations and there has been a breach of s. 7 of the Charter: ibid.,
at para. 20. In the present case, the destruction of operational notes pursuant
to policy OPS-217 constitutes unacceptable negligence, within the meaning of La.
Indeed, no reasonable steps were taken to preserve the evidence: ibid.,
at para. 21. Quite the contrary. CSIS destroyed the materials in violation of
the CSIS Act, and, in so doing, compromised “the very function of
judicial review”: Charkaoui II,atpara. 62. Consequently,
the ministers failed to meet their disclosure obligations towards Mr. Harkat
and breached s. 7 of the Charter.

(2)What Is the Appropriate Remedy?

[94]The finding that CSIS operational materials were
destroyed through unacceptable negligence does not necessarily mean that the
summaries of those materials must be excluded from the evidence. The
appropriate remedy for the destruction of materials pursuant to policy OPS-217
must be assessed on a case-by-case basis, and must be tailored to address the
prejudicial effect on the named person’s case: Charkaoui
II, at para. 46.

[95]The summaries of materials destroyed pursuant to
policy OPS-217 should only be excluded under s. 24(1) of the Charter if
their admission “would result in an unfair trial or would otherwise undermine
the integrity of the justice system”: R. v. Bjelland, 2009 SCC 38,
[2009] 2 S.C.R. 651, at para. 3. “[T]he appropriate focus in most cases of
late or insufficient disclosure under s. 24(1) is the remediation of prejudice
to the accused” and the “safeguarding of the integrity of the justice system”: ibid.,
at para. 26. Since the exclusion of evidence impedes the truth-seeking function
of trials, it should only be resorted to if lesser remedies are inadequate to
achieve those two purposes: ibid., at para. 24.

[96]Thus, the question here is whether the exclusion
of the summaries is necessary to remedy the prejudice to Mr. Harkat’s ability
to know and meet the case against him, or to safeguard the integrity of the
justice system. In my view, it is not.

[97]The disclosure of the summaries in an abridged
version to Mr. Harkat and in an unredacted form to his special advocates was
sufficient to prevent significant prejudice to Mr. Harkat’s ability to know and
meet the case against him. It is true, as the Federal Court of Appeal noted,
that the destruction of the originals makes it impossible to ascertain with
complete certainty whether the summaries contain errors or inaccuracies: para.
133. “An assessment of prejudice is problematic where, as in this case, the
relevant information has been irretrievably lost”: R. v. Bero (2000),
137 O.A.C. 336, at para. 49. However, the impact of the loss of evidence on
trial fairness must be considered “in the context of the rest of the evidence
and the position taken by the defence”: R. v. J.G.B. (2001), 139 O.A.C.
341, at para. 38.

[98]The destruction of the original operational
materials did not significantly prejudice Mr. Harkat’s ability to know and meet
the case against him. As Noël J. noted, reliable summaries of the original
materials pertaining to the intercepted conversations were disclosed to Mr.
Harkat. Mr. Harkat’s position was to deny the very occurrence of most of those
conversations rather than to challenge their specifics. And the content of the
summaries is corroborated by the overall narrative of Mr. Harkat’s life which
emerged during the proceedings: 2010 FC 1243, at paras. 66-67.

[99]Moreover, I am satisfied that the admission of
the summaries does not undermine the integrity of the justice system. While the
destruction of CSIS operational materials was a serious breach of the duty to
preserve evidence, it was not carried out for the purpose of deliberately
defeating the Minister’s obligation to disclose. It must also be recognized
that, prior to this Court’s holding in Charkaoui II, the existence and
scope of CSIS’s legal obligation to preserve operational materials had not been
definitively settled by the courts. It cannot be said that CSIS’s application
of policy OPS-217 evidenced a systematic disregard for the law. Since the
admission of the summaries would neither deny procedural fairness to Mr. Harkat
nor undermine the integrity of the justice system, I conclude that Noël J. made
no reviewable errors in refusing to exclude the impugned summaries of
intercepted conversations.

D.Did the Ministers Breach Their Duties of Candour
and Utmost Good Faith?

[100]The special advocates argue that duties of
candour and utmost good faith required the ministers to make extensive
inquiries of foreign intelligence agencies for information and evidence
regarding several alleged terrorists with whom they claim that Mr. Harkat had
associated. They contend that the ministers failed to discharge these duties.
The courts below found that the ministers made reasonable efforts to obtain
information sought by the special advocates.

[101]In Ruby, this Court recognized that duties of candour and utmost good faith
apply when a party relies upon evidence in ex parte proceedings: “The
evidence presented must be complete and thorough and no relevant information
adverse to the interest of that party may be withheld” (para. 27). The Federal
Court added, in Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163, at para.
500, that “[t]he duties of utmost good faith and candour imply that the party
relying upon the presentation of ex parte evidence will conduct a
thorough review of the information in its possession and make representations
based on all of the information including that which is unfavourable to their
case.”

[102]The duties of candour and utmost good faith
require an ongoing effort to update, throughout the proceedings, the information
and evidence regarding the named person: see, for example, Almrei, 2009
FC 1263, at para. 500. The special advocates argue that, pursuant to these
duties, the ministers must send detailed requests to foreign intelligence
agencies. In their view, those requests must explain the context of security
certificate hearings, the purposes for which the information will be used, and
the consequences for the named person if the information is not provided.

[103]The position advocated by the special advocates
is tantamount to requiring the ministers to conduct an investigation under the
instructions of the special advocates. The ministers have no general obligation
to provide disclosure of evidence or information that is beyond their control: R.
v. Chaplin, [1995] 1 S.C.R. 727, at para. 21; R. v. Stinchcombe,
[1995] 1 S.C.R. 754, at para. 2. With respect to evidence and information held
by foreign intelligence agencies, the ministers’ duty is to make reasonable
efforts to obtain updates and provide disclosure. What constitutes reasonable
efforts will turn on the facts of each case. In the present appeal, I agree
with Noël J. that reasonable efforts were made by the ministers: see 2010 FC
1243, Annex “A”, at paras. 6-7. The ministers sent letters of request to the relevant
foreign intelligence agencies. The outcome of those requests may not have been
satisfactory to the special advocates, but this fact alone is not enough to
conclude that the efforts made by the ministers were insufficient.

E.Were the Proceedings Against Mr. Harkat Fair?

[104]The special advocates ask this Court to find
that, even if the statutory scheme is constitutional in the abstract, Mr.
Harkat was not afforded a fair process in the case at hand and should be
granted a stay of proceedings. They contend that they were not given sufficient
opportunities to test the reliability and accuracy of the summaries of
intercepted conversations and the information provided by foreign intelligence
agencies, nor to test the credibility of the human sources.

[105]I would not grant a stay of proceedings. As
discussed above, Noël J. did not err in admitting the summaries of intercepted
conversations or in refusing to allow the cross-examination of human sources.
The special advocates also fail to demonstrate any reviewable errors in his
conclusions that the foreign intelligence he admitted was reliable and
appropriate, or in the probative value that he accorded to that evidence.

[106]A stay of proceedings is a remedy of last
resort, to be granted only in the clearest of cases: R. v. O’Connor,
[1995] 4 S.C.R. 411, at para. 82; La, at para. 23; Charkaoui
II, at para. 76; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at
para. 31. The special advocates have failed to demonstrate
that Mr. Harkat’s security certificate proceedings were an unfair process or
that state conduct undermined the integrity of the judicial system. Mr. Harkat
is not entitled to a stay of proceedings.

F.Did the Designated Judge Err in Concluding That
the Security Certificate Was Reasonable?

[107]Having concluded that Mr. Harkat received a fair
process, the only remaining issue is whether Noël J. committed any reviewable
errors in concluding that the security certificate referred to him by the
ministers was reasonable. Mr. Harkat raises a single argument: that the trial judge
erred in his weighing of the evidence.

[108]The designated judge’s weighing of the factual
evidence on the record is entitled to appellate deference and should only be
interfered with if he committed a palpable and overriding error: Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Mr. Harkat identifies only
one specific instance where the judge, in his view, committed a palpable and
overriding error. He contends that Noël J. erred in finding that an individual
named Ibn Khattab facilitated terrorist activities, since a judge in another
security certificate case found that Ibn Khattab could not be characterized as
engaging in or facilitating terrorism: see Almrei, 2009 FC 1263. I
cannot accept that submission. In the Almrei case, the designated judge
was careful to qualify his findings on Ibn Khattab as limited to the facts and
the record before him. Indeed, he stated that “[t]he weight of the evidence
before me in this case favours a finding that he [i.e.Ibn
Khattab] was not a terrorist in his own right or a terrorist patron but I
accept that there are reasonable grounds to believe the contrary”: para.
457 (emphasis added).

[109]Noël J. was entitled to make his own assessment
of whether Ibn Khattab was involved in terrorist activities, based on evidence
that he found to be reliable and appropriate. I would not interfere with his
assessment. Nor do I find any palpable and overriding error in Noël J.’s
weighing of the evidence or in his assessment of Mr. Harkat’s credibility, both
of which in his view provided reasonable grounds to establish Mr. Harkat’s
inadmissibility.

IV.Conclusion

[110]The IRPA scheme does not provide a
perfect process. However, it meets the requirements of procedural fairness that
are guaranteed by s. 7 of the Charter. The discretion granted to
designated judges is the crucial ingredient that allows the proceedings to
remain fair from beginning to end. Designated judges must ensure that the named
person receives sufficient disclosure of the information and evidence to be
able to give meaningful instructions to his public counsel and meaningful
guidance to his special advocates, must refuse to admit evidence that is
unreliable or whose probative value is outweighed by its prejudicial effects,
and must take a liberal approach towards authorizing communications by the
special advocates. And in cases where the inherent limitations of the IRPA
scheme create procedural unfairness, designated judges must exercise their
discretion under s. 24(1) of the Charterto grant an appropriate remedy.

[111]In the present case, Mr. Harkat benefited from a
fair process. The designated judge did not err in refusing to exclude summaries
of intercepted conversations and to allow the cross-examination of human
sources. In addition, he did not commit a palpable and overriding error in
concluding that the record provided reasonable grounds to find that Mr. Harkat
was inadmissible on security grounds. Consequently, I would allow the appeal in
part and dismiss the cross-appeal. Noël J.’s conclusion that the
security certificate was reasonable is reinstated.

[112]At the closed hearing, the ministers requested
that they be allowed to review these reasons before they are released to Mr.
Harkat and to the public. I would not allow this. The information contained
within these reasons has already been publicly disclosed in the reasons of the
courts below; it poses no risk to national security.

The following
are the reasons delivered by

[113]Abella AND
Cromwell JJ. (dissenting in part on the appeal) — An
individual who comes forward with information about a potential terrorist
threat, often risks his or her life in doing so if his or her identity is
disclosed. Offering the possibility of anonymity only if a court subsequently
agrees to protect the source’s identity, requires the source to choose between
risk of personal harm if his identity is not protected, or risk of harm to the
public if the information is not disclosed. That is the inevitable result of a
case-by-case approach as suggested by the majority. In our view, with respect,
this choice is not only an unacceptable one from the point of view of the
public’s safety, it is unnecessary.

[114]Like Noël J., in our view, CSIS informants who
provide national security information based on a promise of confidentiality are
entitled to the assurance that the confidentiality will be protected. This can
only be guaranteed by a class privilege, as is done in criminal law cases. A
case-by-case approach results in a source not knowing the likelihood the
promise will be kept until a judge engages in a retrospective assessment as to
whether the promise will be kept. This is hardly conducive to encouraging
informants to risk their lives by coming forward to offer highly sensitive
information in terrorism cases. While we otherwise agree with the reasons of
the Chief Justice, therefore, we do not share her view of what protection
national security sources are entitled to.

Analysis

[115]Informer privilege has been judicially
recognized for more than two centuries and has a dual purpose: protection of a
channel of information and the safety of those supplying it (Stanley Schiff, Evidence
in the Litigation Process (4th ed. 1993), at pp. 1550-56). As Professor
Schiff explains:

The rationale of the privilege
makes it available in all manner of proceedings, including those before
commissions of enquiry and administrative tribunals. The rationale also
makes it available if the informant spoke to a public agency other than the
police, so long as the agency has law enforcement authority. . . . By the
same token, the privilege is not available if the public official to whom the
informer spoke has no law enforcement authority . . . . [Emphasis added; pp.
1551-52.]

the
identity of persons supplying the government with information concerning the
commission of crimes. . . .

. . .

. . .
the principle is a large and flexible one. It applies wherever the situation is
one where without this encouragement the citizens who have special information
of a violation of law might be deterred otherwise from voluntarily reporting it
to the appropriate official. [Emphasis deleted.]

(John
Henry Wigmore, Evidence in Trials at Common Law (McNaughton rev. 1961),
vol. 8, at pp. 761 and 767-68)

[118]This Court has repeatedly held that unlike Crown
privilege or privileges based on Wigmore’s four-part test, the police informer
privilege does not permit a balancing of the benefits of protecting the
privileged information against countervailing benefits: Bisaillon, at
pp. 93-98. This recognizes that the danger to the safety of the informer and to
the intelligence-gathering process is considered to be too great to permit the
consideration of countervailing factors: R. v.Leipert, [1997] 1
S.C.R. 281, at para. 12; Named Person v.Vancouver Sun, [2007] 3
S.C.R. 253, at paras. 19-22. In Bisaillon, this Court stated:

This procedure, designed to
implement Crown privilege, is pointless in the case of secrecy regarding a
police informer. In this case, the law gives the Minister, and the Court after
him, no power of weighing or evaluating various aspects of the public interest
which are in conflict, since it has already resolved the conflict itself. It
has decided once and for all, subject to the law being changed, that
information regarding police informers’ identity will be, because of its
content, a class of information which it is in the public interest to keep
secret, and that this interest will prevail over the need to ensure the
highest possible standard of justice. [Emphasis added; pp. 97-98.]

[119]In R. v. Basi, [2009] 3 S.C.R. 389, at
para. 44, this Court went so far as to conclude that allowing counsel to
participate in an in camera hearing involving a police informant was
impermissible, even if they undertook not to disclose any privileged
information:

No one outside the circle of privilege
may access information over which the privilege has been claimed until a judge
has determined that the privilege does not exist or that an exception applies.

[120]The privilege for informers in the context of
state officials investigating matters of national security is not a “new”
privilege, but a well-established one. The Ontario Court of Appeal has
recognized a common law CSIS source privilege: R. v. Y. (N.), 2012 ONCA
745, 113 O.R. (3d) 347. This case involved the transfer of Shaikh, an
informant, from CSIS to the RCMP. One issue before the court was whether the
informant had at some point become a state agent for the purposes of entrapment
and abuse of process analyses. The court accepted that Shaikh had informant
status while working with CSIS: see paras. 12 and 120. The court’s conclusion
that Shaikh was not a state agent was premised in part on the fact that he had
not intended to waive the confidentiality protections associated with his
informant status: paras. 123-25. The court defined a “confidential informant”
as a “voluntary source of information to police or security authorities”:
para. 122 (emphasis added).

[121] The common law’s protection of informer
privilege is based on the common sense recognition that engaging in a
case-by-case balancing of interests would frustrate the rationale of informer
privilege by discouraging the cooperation of informants. As the U.S. Supreme
Court explained in a related context, leaving disclosure to individual judges
would cause national security sources to “close up like a clam”: Central
Intelligence Agency v. Sims, 471 U.S. 159 (1985), at p. 175.

[122]This Court recognized the breadth of the
privilege in Solicitor General of Canada v. Royal Commission of Inquiry into
the Confidentiality of Health Records in Ontario, [1981] 2 S.C.R. 494. The
issue was whether RCMP officers could be compelled to disclose to the
Commission the identities of individuals who, based on an assurance of
confidentiality, gave information to police officials. The Court concluded that
the privilege prevented disclosure. The Court held that the immunity from
disclosure is “general in scope”, applying not only in criminal proceedings but
also in civil proceedings, before commissions of inquiry and in “forensic
investigations” generally (pp. 535-36). Writing for the majority, Martland J.
emphasized that the rationale which supports the privilege applies with even
more cogency in the national security context:

A large number of the
instances in which, in the present case, it was sought to obtain from the
police the names of their informants concerned police investigation into
potential violence against officers of the state, including heads of state.
These investigations were admittedly proper police functions. The rule of
law which protects against the disclosure of informants in the police
investigation of crime has even greater justification in relation to the
protection of national security against violence and terrorism. [Emphasis
added; p. 537.]

[123]Before CSIS was created as an independent
agency, the intelligence function it now carries out was performed by the RCMP
Security Service: see Commission of Inquiry Concerning Certain Activities of
the Royal Canadian Mounted Police (the “McDonald Commission”), First Report, Security
and Information (1979), and Second Report, Freedom and Security under
the Law, vols. 1 and 2 (1981). The McDonald Commission, which led to the
creation of an independent intelligence agency in Canada, was of the view that
informer privilege applied to RCMP officers performing intelligence work: see
Second Report, vol. 2, at pp. 1162-63. It explained the importance of
preserving informant confidentiality as follows:

Security and intelligence
activities cannot be carried out effectively without the use of informants.
Informants are the main source of information for security and intelligence
agencies. Whether the informants are paid or voluntary they invariably provide
the information on the basis that their identity will be kept secret and that
every effort will be made to ensure that it remains so. Their reasons for
wanting their identity to remain secret are myriad and include fear of physical
retaliation, harassment or ostracism. Any uncertainty about the ability of
agencies to keep sources confidential will result in a “drying up” of such sources.

(First
Report, at p. 42)

[124]The mandate of the RCMP Security Service was set
out in a cabinet directive of 1975 as being to “‘discern, monitor, investigate,
deter, prevent and counter’ persons engaging in subversive or other activity
inimical to national security”: Parliamentary Research Branch, “The Canadian
Security Intelligence Service” (2000), Current Issue Review 84-27E, at p. 4.
Those functions are now found in s. 12 of the Canadian Security Intelligence
Service Act, R.S.C. 1985, c. C-23, which states that “[t]he Service shall
collect, by investigation or otherwise, to the extent that it is strictly
necessary, and analyse and retain information and intelligence respecting
activities that may on reasonable grounds be suspected of constituting threats
to the security of Canada and, in relation thereto, shall report to and advise
the Government of Canada.”

[125]As this Court pointed out in Charkaoui v.
Canada (Citizenship and Immigration), [2008] 2 S.C.R. 326 (“Charkaoui II”),
“the activities of the RCMP and those of CSIS have in some respects been
converging”: para. 26. There is no doubt that informer privilege applied to
RCMP Security Service informants. While it is true that the functions of CSIS
and the RCMP are distinct, the rationale for the informer privilege applies
equally to the work of both. The transfer of functions from the RCMP Security
Service to CSIS should have no bearing on whether the privilege continues to
exist. The investigatory and monitoring services CSIS performs are those previously
carried out by the RCMP. There has been a statutory transfer, but not a
functional one.

[126]The erection of an artificial boundary between
them could lead to absurd results. A source who began supplying information to
the police regarding a suspected terrorist threat and then later provided
information to CSIS would be entitled to the privilege with respect to the
former but not the latter interaction, even if the same assurances of privilege
had been given by both agencies. This is not an abstract problem, given the
frequent cooperation between the two agencies.

[127]Two recent cases illustrate the way sources are
shared in national security investigations: R. v. Ahmad, 2009 CanLII
84776 (Ont. S.C.J.), at paras. 31-34; Y. (N.), at para. 120. Ahmad
involved information obtained by CSIS and shared with the RCMP, which led to
criminal prosecutions for terrorism offences. Y. (N.) involved the
transfer of a human source from CSIS to the RCMP. In Ahmad, Dawson J.
made the following observation about the nature of the relationship between
CSIS and the RCMP:

. . . situations will
arise where some sharing of information must occur if each organization is to
fulfill its mandate. For example, where CSIS comes into possession of
information of a real threat to national security, or learns of serious
criminal activity, it must notify the RCMP. As Mr. Brooks indicated at para. 15
of his affidavit, CSIS will normally be engaged in the investigation of threats
to the security of Canada before the police would have sufficient evidence to
commence an investigation on their own. He also points out in his evidence that
intelligence gathering investigations are very open ended and wide ranging,
with the focus on looking for trends and relationships to help predict emerging
or future threats. Such investigations are not oriented towards prosecution. It
is the function of the police to react to any information provided by CSIS and
to determine how best to proceed from a police perspective. [para. 34]

[128]To argue that it is unjust for the ministers to
claim privilege over the identity of CSIS human sources while continuing to
rely on the information obtained from them, is to forget the significant
distinction between whether the privilege exists and whether the information
provided by the human source can be used to establish the reasonableness of the
certificate. Where the information has been redacted and anonymized so that
the identity of the human source cannot be ascertained, there is no reason that
it must always be eliminated from consideration by the designated judge. There
is an obvious analogy to the well-settled law that permits confidential
informant information to be considered, for example, in an information to
obtain a search warrant and in a wiretap authorization: R. v. Debot,
[1989] 2 S.C.R. 1140; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1456.
In these contexts, the law has developed some protections, but under certain
conditions it nonetheless allows the confidential source material to be
considered without the cross-examination of the source.

[129]Noël J. found that “the recruitment of human
sources would be harmed if the guarantees of confidentiality given by the
Service were not upheld by this Court”: 2009 FC 204, at para. 28. He set out
some possible safeguards and lines of inquiry that could help ensure that
anonymous source material is sufficiently reliable that it could fairly be
considered as part of the review of the reasonableness of the certificate:
paras. 64-67. In addition, if a reviewing judge were of the view that
consideration of confidential source material would result in a review hearing
that does not meet the Charkaoui II standard, the judge could exclude
that information from consideration.

[130]There may also be limited circumstances in which
the special advocates could be granted access to the privileged information,
namely where it is necessary so that the validity of the claim of privilege can
be tested. In a criminal trial, the trial judge can look at privileged
information where doing so is necessary to establish that the privilege is
properly claimed. In Vancouver Sun and in Basi, at para. 57, it
was held that in certain circumstances an amicus curiae may be
considered to be part of the “circle of privilege”.

[131]The special advocates may play a similar role in
closed proceedings. While this Court held in Basi that it was
impermissible for the accused’s counsel to view privileged information based on
the need to preserve the integrity of the solicitor-client relationship,
different considerations apply to special advocates. The special advocate is
not in a solicitor-client relationship. Furthermore, he or she is subject to
heightened security clearance requirements which reduce the risk that
disclosure may pose. As a result, if the designated judge believes that
submissions by special advocates could assist in determining whether a
privilege claim is valid, they may be entitled to view the privileged
information. Submissions based on information identifying the human source
should be limited to the validity of the privilege claim and not extend to the
reliability of the information.

[132]Nor do we think the privilege is abrogated by
statute. The Federal Court of Appeal was of the view that when Parliament
enacted the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”),
it comprehensively legislated the disclosure obligations of the Minister in the
security certificate context such that there was no room for importing common
law privileges to qualify the disclosure obligations of the Minister. Since
ss. 77(2) and 83(1)(c) to (e) of IRPAspecify that the
Minister and judge may not disclose information which is injurious to national
security or which puts the safety of any person at risk, recognizing a class
privilege would mean that disclosure could be withheld in a case where neither
of these two factors was present.

[133]We are unpersuaded that the common law has been
ousted by these provisions. In order to abrogate a common law privilege,
Parliament must clearly express an intention to do so: see Canada (Privacy
Commissioner) v.Blood Tribe Department of Health, [2008] 2 S.C.R.
574,at para. 26. IRPAmakes no reference to informer privilege
and, as discussed later in these reasons, does not evince a clear intention to
deprive CSIS human sources of its benefit.

[134]IRPA also fails
to distinguish between what disclosure means in the context of ss. 77(2) and 83(1)(c)
to (e) and what it means in the context of disclosing privileged
information to the special advocates. Section 77(2) of IRPAprovides
that the Minister must file with the court the information and other evidence
on which the security certificate is based. On the other hand, disclosure of
information subject to informer privilege raises different considerations. This
information will generally not have been provided to the judge under s. 77(2)
and so will not form part of the judge’s decision on the reasonableness of the
issuance of the security certificate. The only provision of IRPAwhich
would govern such a scenario is s. 85.2, which sets out the powers of a special
advocate, and, in particular, s. 85.2(c), which states that a special
advocate may “exercise, with the judge’s authorization, any other powers that
are necessary to protect the interests of the permanent resident or foreign
national”. The same analysis applies with respect to ss. 37 and 38 of the Canada
Evidence Act, R.S.C. 1985, c. C-5. This Court held in Basi that
where a claim of informer privilege falls under s. 37 of the Canada Evidence
Act, the usual public interest balancing exercise under s. 37(5) is
displaced by the common law privilege: paras. 23-24. Additional protection is
therefore provided for national security secrets but without abrogating the
underlying common law privileges.

[135]The final question relates to whether an
exception to the privilege should apply in the security certificate context.
Noël J. was of the view that there was a “need to know” exception, analogous to
the “innocence at stake” exception to the police informer privilege. This
exception means that the privilege can be set aside in cases where maintaining
it would undermine the accused’s ability to raise a reasonable doubt. The “need
to know” exception would similarly be engaged when abrogating the privilege is
necessary to prevent a serious breach of procedural fairness that would impugn
the administration of justice. On the facts before him, Noël J. held that the
requirements of the “need to know” exception had not been met and therefore
denied the special advocates’ request.

[136]In our view, the “need to know” exception
outlined by Noël J. is overly broad: 2009 FC 204, at para. 46. We agree with
the ministers that this exception is broader than the “innocence at stake”
exception because the latter applies only where there is a risk of an unjust
outcome, whereas the “need to know” exception applies where there is an unjust
procedure. It also appears to overlook the considerable procedural flexibility
that is available to the reviewing judge and the particular role of the special
advocate.

[137]But given the intensity of the interests at
stake in the security certificate context, we acknowledge that it would be appropriate
to recognize a limited exception specifically crafted for the security
certificate process which would address only disclosure to the special
advocate, not to the subject of the proceedings. Identity should be disclosed
only if the reviewing judge is satisfied that other measures, including
withdrawing the substance of the informant’s evidence from consideration in
support of the certificate, are not sufficient to ensure a just outcome. Noël
J. ordered generous disclosure of material to the special advocates concerning
the credibility of informers and the information they supplied. He allowed
cross-examination of CSIS witnesses on the value, reliability and usefulness of
informer information. In some circumstances, he relied on informer information
only where it had been corroborated. If these measures are not considered
adequate, the reviewing judge also has discretion under s. 83(1)(h) of IRPA
to refuse to rely on evidence that he or she does not consider to be reliable
and appropriate. Only if resort to these measures would not ensure a just
outcome should identity be disclosed.

[138]Even when disclosure of identity is ordered,
there should be no cross-examination of the source by the special advocate.
Requiring a human source to testify will have a profound chilling effect on the
willingness of other sources to come forward, and will undoubtedly damage the
relationship between CSIS and the source compelled to testify. CSIS operatives
must be able to provide confident assurances to their sources that their
identities will not be revealed, not vague assurances hedged with
qualifications. Moreover, the human sources themselves, who are not subject to
the necessary security clearance, may learn sensitive material in the closed
proceedings which CSIS will then be unable to control.

[139]We would therefore allow the ministers’ appeal
on the informant privilege issue and restore Noël J.’s disposition of this
issue.

33. The facts that constitute inadmissibility under sections 34 to 37
include facts arising from omissions and, unless otherwise provided, include
facts for which there are reasonable grounds to believe that they have
occurred, are occurring or may occur.

34. (1) A permanent resident or a foreign national is inadmissible on
security grounds for

(a) engaging in an
act of espionage that is against Canada or that is contrary to Canada’s
interests;

(b) engaging in or
instigating the subversion by force of any government;

(b.1) engaging in
an act of subversion against a democratic government, institution or process as
they are understood in Canada;

(c) engaging in
terrorism;

(d) being a danger
to the security of Canada;

(e) engaging in
acts of violence that would or might endanger the lives or safety of persons in
Canada; or

(f) being a member
of an organization that there are reasonable grounds to believe engages, has
engaged or will engage in acts referred to in paragraph (a), (b),
(b.1) or (c).

. . .

77. (1) The Minister and the Minister of Citizenship and Immigration
shall sign a certificate stating that a permanent resident or foreign national
is inadmissible on grounds of security, violating human or international
rights, serious criminality or organized criminality, and shall refer the
certificate to the Federal Court.

(2)
When the certificate is referred, the Minister shall file with the Court the
information and other evidence on which the certificate is based, and a summary
of information and other evidence that enables the person who is named in the
certificate to be reasonably informed of the case made by the Minister but that
does not include anything that, in the Minister’s opinion, would be injurious
to national security or endanger the safety of any person if disclosed.

(3)
Once the certificate is referred, no proceeding under this Act respecting the
person who is named in the certificate — other than proceedings relating to
sections 82 to 82.3, 112 and 115 — may be commenced or continued until the
judge determines whether the certificate is reasonable.

78. The judge shall determine whether the certificate is reasonable and
shall quash the certificate if he or she determines that it is not.

. . .

80. A certificate that is determined to be reasonable is conclusive
proof that the person named in it is inadmissible and is a removal order that
is in force without it being necessary to hold or continue an examination or
admissibility hearing.

81. The Minister
and the Minister of Citizenship and Immigration may issue a warrant for the
arrest and detention of a person who is named in a certificate if they have
reasonable grounds to believe that the person is a danger to national security
or to the safety of any person or is unlikely to appear at a proceeding or for
removal.

. . .

83. (1) The following provisions apply to proceedings under any of
sections 78 and 82 to 82.2:

(a) the judge
shall proceed as informally and expeditiously as the circumstances and considerations
of fairness and natural justice permit;

(b) the judge
shall appoint a person from the list referred to in subsection 85(1) to act as
a special advocate in the proceeding after hearing representations from the
permanent resident or foreign national and the Minister and after giving
particular consideration and weight to the preferences of the permanent
resident or foreign national;

(c) at any time
during a proceeding, the judge may, on the judge’s own motion — and shall, on
each request of the Minister — hear information or other evidence in the
absence of the public and of the permanent resident or foreign national and
their counsel if, in the judge’s opinion, its disclosure could be injurious to
national security or endanger the safety of any person;

(d) the judge
shall ensure the confidentiality of information and other evidence provided by
the Minister if, in the judge’s opinion, its disclosure would be injurious to
national security or endanger the safety of any person;

(e) throughout the
proceeding, the judge shall ensure that the permanent resident or foreign
national is provided with a summary of information and other evidence that
enables them to be reasonably informed of the case made by the Minister in the
proceeding but that does not include anything that, in the judge’s opinion,
would be injurious to national security or endanger the safety of any person if
disclosed;

(f) the judge
shall ensure the confidentiality of all information or other evidence that is
withdrawn by the Minister;

(g) the judge
shall provide the permanent resident or foreign national and the Minister with
an opportunity to be heard;

(h) the judge may
receive into evidence anything that, in the judge’s opinion, is reliable and
appropriate, even if it is inadmissible in a court of law, and may base a
decision on that evidence;

(i) the judge may
base a decision on information or other evidence even if a summary of that
information or other evidence is not provided to the permanent resident or
foreign national; and

(j) the judge
shall not base a decision on information or other evidence provided by the
Minister, and shall return it to the Minister, if the judge determines that it
is not relevant or if the Minister withdraws it.

(1.1)
For the purposes of paragraph (1)(h), reliable and appropriate evidence
does not include information that is believed on reasonable grounds to have
been obtained as a result of the use of torture within the meaning of section
269.1 of the Criminal Code, or cruel, inhuman or degrading treatment or
punishment within the meaning of the Convention Against Torture.

. . .

85.1 (1) A special advocate’s role is to protect the interests of the
permanent resident or foreign national in a proceeding under any of sections 78
and 82 to 82.2 when information or other evidence is heard in the absence of
the public and of the permanent resident or foreign national and their counsel.

(2) A
special advocate may challenge

(a) the Minister’s
claim that the disclosure of information or other evidence would be injurious
to national security or endanger the safety of any person; and

(b) the relevance,
reliability and sufficiency of information or other evidence that is provided
by the Minister and is not disclosed to the permanent resident or foreign
national and their counsel, and the weight to be given to it.

(3)
For greater certainty, the special advocate is not a party to the proceeding
and the relationship between the special advocate and the permanent resident or
foreign national is not that of solicitor and client.

(4)
However, a communication between the permanent resident or foreign national or
their counsel and the special advocate that would be subject to
solicitor-client privilege if the relationship were one of solicitor and client
is deemed to be subject to solicitor-client privilege. For greater certainty,
in respect of that communication, the special advocate is not a compellable
witness in any proceeding.

85.2 A special advocate may

(a) make oral and
written submissions with respect to the information and other evidence that is
provided by the Minister and is not disclosed to the permanent resident or
foreign national and their counsel;

(b) participate
in, and cross-examine witnesses who testify during, any part of the proceeding
that is held in the absence of the public and of the permanent resident or
foreign national and their counsel; and

(c) exercise, with
the judge’s authorization, any other powers that are necessary to protect the
interests of the permanent resident or foreign national.

. . .

85.4 (1) The Minister shall, within a period set by the judge, provide
the special advocate with a copy of all information and other evidence that is
provided to the judge but that is not disclosed to the permanent resident or
foreign national and their counsel.

(2)
After that information or other evidence is received by the special advocate,
the special advocate may, during the remainder of the proceeding, communicate
with another person about the proceeding only with the judge’s authorization
and subject to any conditions that the judge considers appropriate.

(3) If
the special advocate is authorized to communicate with a person, the judge may
prohibit that person from communicating with anyone else about the proceeding
during the remainder of the proceeding or may impose conditions with respect to
such a communication during that period.

85.5 With the exception of communications authorized by a judge, no
person shall

(a) disclose
information or other evidence that is disclosed to them under section 85.4 and
that is treated as confidential by the judge presiding at the proceeding; or

(b) communicate
with another person about the content of any part of a proceeding under any of
sections 78 and 82 to 82.2 that is heard in the absence of the public and of
the permanent resident or foreign national and their counsel.

38.06 (1) Unless the judge concludes that the disclosure of the
information or facts referred to in subsection 38.02(1) would be injurious to
international relations or national defence or national security, the judge
may, by order, authorize the disclosure of the information or facts.

(2) If
the judge concludes that the disclosure of the information or facts would be
injurious to international relations or national defence or national security
but that the public interest in disclosure outweighs in importance the public
interest in non-disclosure, the judge may by order, after considering both the
public interest in disclosure and the form of and conditions to disclosure that
are most likely to limit any injury to international relations or national
defence or national security resulting from disclosure, authorize the
disclosure, subject to any conditions that the judge considers appropriate, of
all or part of the information or facts, a summary of the information or a
written admission of facts relating to the information.

Solicitors
for the intervener the Canadian Association of Refugee Lawyers: Sack Goldblatt
Mitchell, Toronto.

Solicitors
for the interveners the Canadian Council for Refugees and the International Civil
Liberties Monitoring Group: Jackman Nazami & Associates, Toronto; Queen’s
University, Kingston; Refugee Law Office, Toronto.

Solicitors
for the intervener the Canadian Council on American-Islamic Relations (now
known as National Council of Canadian Muslims): Office Khalid Elgazzar,
Barrister, Ottawa; Osgoode Law School of York University, Toronto.

[1]
The special advocates have already had access to the complete human source
files. Although the designated judge found that privilege applied to CSIS human
sources, he nevertheless ordered disclosure of unredacted versions of the
relevant files to the special advocates as a remedy for breaches by the ministers
of their obligations towards Mr. Harkat. See 2009 FC 553 and 2009
FC 1050.

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